On May 13, 2002, this office issued a comprehensive Brady policy set forth in
Special Directive 02-04 and Special Directive 02-05. At that time, the Brady
Alert System was being developed. In the intervening time, the U.S. Supreme
Court and California Supreme Court have given us additional guidance through
Full compliance with constitutionally required discovery under Brady v.
Maryland (1963) 373 U.S. 83, must include a method of identifying and
accessing possible Brady material in the possession of law enforcement.
Therefore, in conjunction with SD 02-08, which sets forth office policy for
handling Brady material known within the Office of the District Attorney, this
policy addresses possible Brady material which may be in the possession of law
enforcement. This policy fulfills prosecutorial obligations while protecting the
statutory and privacy rights of police officers.
Subject to any future changes in the law, this Special Directive sets forth
the office policy for handling this component of Brady discovery obligations.
I. BRADY REQUESTS
It is the responsibility of each deputy district attorney to determine
whether to request a law enforcement agency to review their personnel files for
possible Brady documents concerning their employees. In order to make any
request, the police report and other written documentation provided by the law
enforcement agency must establish, on its face, that a law enforcement employee
is a material witness and that there may be evidence concerning that material
witness which is favorable to the defense and to which the defense may be
entitled. Favorable evidence includes not only evidence that tends to exculpate
the accused, but also evidence that may impeach the credibility of a government
witness. (Giglio v. United States (1972) 405 U.S. 150 at 154.) A Brady
violation occurs where the failure to disclose evidence to the defense deprives
the defendant of a fair trial. (United States v. Bagley (1985) 473 U.S.
667, 675.) Thus, in the context of Brady requirements, a defendant is deprived
of a fair trial when it is reasonably probable that the failure to provide
evidence to the defense will affect the outcome of the case, (United States
v. Bagley, supra, 473 U.S. at 682.), or stated another way, the failure to
disclose the evidence "could reasonably be taken to put the whole case in such a
different light as to undermine the confidence in the verdict." (Kyles v.
Whitley (1995) 514 U.S. 419, 435.)
A. THE PROSECUTION MUST MAKE A PRELIMINARY DETERMINATION OF POTENTIAL
IMPEACHMENT OR EXCULPATORY MATERIAL AT ARRAIGNMENT ON AN INFORMATION
Potential impeachment or exculpatory material includes: (1) statements made
by the defendant or potential defense witnesses which contradict statements made
by a material law enforcement employee/witness; (2) statements made by the
defendant or potential defense witness that a material law enforcement
employee/witness used excessive force; and/or (3) statements made by the
defendant or potential defense witness that allege that a law enforcement
employee made racial, religious or other statements exhibiting bias.
If a deputy district attorney determines, from police reports or witness
interviews, that such statements exist and also determines that the
information involves a material law enforcement employee or witness, a request
shall be made to the law enforcement agency to review its personnel files for
possible Brady documents. If the police report and other written documentation
are silent as to any conflict between the material law enforcement witness and
the defendant or other potential defense witness, then no request shall be made.
If the deputy cannot determine whether to request that the law enforcement
agency search for possible Brady documents, the deputy shall consult with the
Head Deputy or Deputy-in-Charge.
If the deputy requests that the agency search its records for Brady
documentation, he or she shall make a notation in the district attorney file as
to the reason for the request. A reference to the relevant part of the police
report or other written documentation supporting the request is sufficient. If
no request to search personnel files is made, then no such entry is necessary.
B. PENAL CODE SECTION 1054.1
Penal Code section 1054.1 requires disclosure of names and addresses of
witnesses, statements by the defendant, all relevant real evidence, the
existence of felony convictions of material witnesses, exculpatory evidence and
relevant written or recorded statements of witnesses the prosecution intends to
call or reports by them at least 30 days before trial. Therefore,
in order to comply with the 30-day rule of section 1054.7, the request that a
law enforcement agency review its personnel files following arraignment on an
Information should allow sufficient time for compliance.
C. The Brady Form
A special form has been prepared to use whenever a deputy requests a search
for possible Brady documents from law enforcement. This form is the only form to
be used by deputies making such requests. The Brady form must be completed in
its entirety and with sufficient specificity to enable the law enforcement
agency to comply with the request. (See, for example, People v. Mooc
(2001) 26 Cal. 4th 1216, 1230.) 1
Any request for a law enforcement agency to search its personnel files shall
be made in writing using the Brady form. An oral request shall never be made.
On August 26, 2002, the California Supreme Court in City of Los Angeles v.
Superior Court (Brandon) (2002) 29 Cal 4th 1 noted that if Penal
Code section 832.7 were used to defeat the right of a prosecutor to obtain
access to officer personnel records in order to comply with Brady, it may be
unconditional as applied. (Footnote 2 at p. 12)
D. Return of Form
Each agency should designate a sworn officer who will receive each request
and respond in a timely fashion. The law enforcement agency designee will be
directed to return the Brady form to the appropriate Head Deputy or
Deputy-in-Charge who shall give the original to the deputy district attorney
assigned to handle the case. A copy of the signed form should be provided to the
defense and so noted in the district attorney file.
This manner of processing should avoid misdirection of the form.
E. Defense Initiated Requests
If a defense attorney, either orally or in writing, provides information to
the assigned prosecutor that a material law enforcement witness’ version of
events may contain material misstatements or omissions, that defense attorney is
to be directed to either file a Pitchess motion or provide to the
prosecutor a signed declaration under penalty of perjury by the individual with
personal knowledge of the law enforcement witness’ untruthfulness.
Upon receipt of such a declaration, the prosecutor shall request that the
employing agency review its personnel files for possible Brady material using
the Brady form.
If the defense files a Pitchess motion in lieu of a declaration, the
deputy shall not make a separate request of the employing agency.
II. The Brady Motion
If a deputy district attorney receives a Brady form indicating the existence
of possible Brady information for a material witness, that deputy shall file a
motion and accompanying supporting documents with the court, indicating there is
reason to believe that there may be information about the credibility of a law
enforcement witness to which the defense may be entitled. A copy of the motion
shall be served upon the defense as well as the legal representative for the
agency. The law enforcement officer involved shall also be notified by the Head
Deputy or Deputy-in-Charge. The motion shall request the court hold a hearing
pursuant to all notice and statutory requirements under Code of Civil Procedure
section 1005(b). The motion shall further request, pursuant to Evidence Code
section 1043, the court review the information provided by the agency’s
custodian of records in camera, ex parte and determine whether to release
any documents to both the defense and to the prosecution. The deputy shall
request a protective order limiting the disclosure and use of the information
provided to both the prosecution and the defense to the specific case before the
court pursuant to Evidence Code section 1045. If the court releases any
information without a protective order, the deputy shall immediately notify the
Brady Compliance Division pursuant to SD 02-08.